Is Distance Ed Rule DOA?

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The U.S. Department of Education, with a month to go until the transition of power, has finalized a rule that clarifies how colleges become authorized to offer online programs to students in other states -- an effort in the works since the first years of the Obama administration. But the rule is by all indications dead on arrival.

The final rule, released on Dec. 16, requires colleges that offer online education programs to follow each state’s authorization process -- which often involves filling out an application and paying a fee to a local higher education agency -- and clarifies disclosure and student complaint procedures. It also recognizes that states can participate in reciprocity agreements.

The rule-making process has been one of fits and starts, complete with court cases, delays and failed negotiations -- and then a surprise last-ditch effort this summer. After collecting input on a draft this fall, the Education Department published the final rule in the Federal Register on Monday.

Yet the rule may never go into effect. The Trump administration will have plenty of time to set its own regulatory agenda, given that the rule’s effective date isn’t until July 1, 2018. Trump also promised during the campaign that he would seek to remove two existing regulations for each new one introduced.

Trump has support for undoing Obama’s regulatory legacy in Congress. Representative Virginia Foxx, Republican of North Carolina, said in an interview with Inside Higher Ed last month that her party is looking to “deal with” certain “onerous rules and regulations” as part of how it approaches higher education.

Foxx, the incoming chairwoman of the House Committee on Education and the Workforce, specifically mentioned the state authorization rule as one example. She has over the last several years introduced bills that would block or repeal that and other rules issued by the Education Department.

A group of conservative Republicans in the House of Representatives last week unveiled a similar agenda. The House Freedom Caucus released a report detailing executive orders, regulations and rules it hopes the new administration and Congress will review in their first 100 days. That list does not mention the state authorization rule; however, it was published five days before the Education Department issued the final rule. A spokesperson for Representative Mark Meadows, the North Carolina Republican who chairs the congressional caucus, did not respond to a request for comment about whether the group plans to add the state authorization rule to the list.

A spokesperson for the Education Department declined to speculate about whether the Trump administration will let the rule go into effect, referring the question to the transition team, which did not respond to questions sent by email.

That consumer protection groups, higher education associations, state attorneys general and the Education Department would spend more than half a decade on the rule only to see it likely be scrapped has some people disillusioned with the rule-making process.

When a negotiating committee in 2014 failed to reach consensus on the rule, members of the panel pointed to one central disagreement as the culprit: that states should be required to conduct an “active review” of out-of-state colleges. The final rule does away with that requirement, leaving it up to the states.

“The issue that was the main sticking point in the negotiated rule making for 2014, they [the Education Department] now agree with,” Russell Poulin, director of policy and analysis for the WICHE Cooperative for Educational Technologies, said in an interview. “We could have had this done and in place, and it probably would have stuck around because people would have seen it wasn’t the ‘sky is falling’ regulation that people said it would be.”

While the Education Department has worked on the rule, independent efforts to address the state authorization issue, such as the State Authorization Reciprocity Agreement (SARA), have emerged.

SARA is built on the premise of mutual buy-in. Instead of completing the authorization process in all 50 states, colleges can join SARA and become authorized to offer programs to students in the states that also have joined. The organization has proved appealing -- more than 1,000 colleges and all but a handful of states have joined since SARA began accepting members three years ago.

While department higher-ups have throughout the rule-making process reassured SARA that the rule would not undermine its work, the final rule includes a change that SARA's national council on Tuesday described as "puzzling."

The final rule states that reciprocity agreements can't ban a state from enforcing its own laws, which SARA said suggests the Education Department will recognize reciprocity agreements that allow states to continue to enforce their own laws -- even though they have entered an agreement to share a common legal framework.

"If it applied to drivers’ licenses, each state would need to establish testing centers at the state line to assure that every driver authorized to drive by another state could pass the local state’s examination," SARA said in its response.

The spokesperson for the Education Department, speaking on background, said the change is meant to clarify a previously ambiguous reference to "consumer protection laws."

"These reciprocity agreements should not supersede any state’s laws or regulations, including those specifically related to the postsecondary sector," the spokesperson said in an email. "Member states of reciprocity agreements will need to address any conflicts that arise prior to admitting any state into the reciprocity agreement, and ensuring that states make any necessary changes to their laws before entry. Also, reciprocity agreements would not be forced to accept any state with conflicting statutes or regulations."

The Century Foundation, a progressive think tank, was one of the organizations pushing for the change. The foundation has previously been critical of SARA, arguing the organization opens the door for “predatory online education companies” to take advantage of students. SARA has responded to the criticism by pointing to its own membership guidelines, which block institutions deemed financially irresponsible from joining.

“In general, the rule seems pretty strong,” Margaret Mattes, a policy associate for the foundation, said in an email. “We've heard some grumblings from [SARA] and WICHE, but the specification that SARA/SARA-like agreements cannot violate state law is a big advancement.”